Back
High Court Of Himachal Pradesh
R.L.KHURANA
GENERAL SALES LTD. - Appellant
Versus
JAGDISH RANA - Respondent
Civil Suit No. 89 of 1994
Decided On : 09/16/2002
SPECIFIC PERFORMANCE - SALE OF LAND - AGREEMENT - MODIFICATION - ADDENDUM - JOINT SURVEY - DEMARCATION - PLAN - IDENTIFICATION OF LAND - MUTUAL MISTAKE - TIME - ESSENCE OF CONTRACT - DISCRETION OF COURT - READINESS AND WILLINGNESS TO PERFORM - SUBSTANTIAL HARDSHIP - REFUND OF ADVANCE - INTEREST.
Fact of the Case:
Plaintiffs sought specific performance of an agreement to sell land, alleging that the defendant agreed to sell 50 bighas 14 biswas of land out of his total land measuring 65 bighas 14 biswas. The agreement was modified by two addendums, and a joint survey was carried out to identify the land to be sold. However, the plaintiffs claimed that the defendant had constructed a cottage on a portion of the land agreed to be sold and refused to perform his part of the agreement.
Finding of the Court:
The court found that the parties were under a mutual mistake as to the identity of the land agreed to be sold and that the plaintiffs were not ready and willing to perform their part of the contract. The court also found that the inclusion of the disputed area in the land agreed to be sold and by grant of decree for specific performance would involve substantial hardship to the defendant.
Issues: 1. Whether the defendant entered into an agreement of sale dated 28.9.1990 which was modified by addendum afresh on 20.10.1990 and 13.12.1991 whereby he agreed to sell 50.14 bighas of land measuring 45,630 sq. yds. to the plaintiffs as per the details in the plaint? 2. Whether the plaintiff has been ready and willing to perform its part of the contract and the defendant has resiled from getting the sale deed registered? 3. Whether the plaintiff is guilty of suppression of material facts and as such is not entitled to the relief of specific performance? 4. Whether there has been any mutual mistake in the execution of agreement of sale dated 28.9.1990 and 20.10.1990? If so, its effect? 5. Whether time was the essence of the contract arid the plaintiff failed to fulfil its part of the contract? If so, its effect? 6. Relief.
Ratio Decidendi: 1. In the case of agreement of sale relating to immovable property, time is not the essence of the contract unless specifically provided for to that effect. 2. The remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily. 3. The plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. 4. The identity of the land agreed to be sold and purchased must be certain.
Final Decision: The suit for specific performance was dismissed. The defendant was ordered to refund the sum of Rs. 30,00,000 received by him as part payment of the sale consideration, with interest at the rate of 6% per annum from the date of suit till the date of payment.
R.L. Khurana, J.—In the present suit for specific performance, the plaintiffs have sought the following relief(s) :— "a decree for specific performance be passed in favour of the plaintiffs (or any of them preferably the second plaintiff) and against the defendant and— (i) the defendant (in terms of Agreement to Sell dated 28.9.1990 as modified by the two addenda dated 20.10.1990 and 13.12.1991) be directed to transfer his right, title and interest in the property known and styled as The Peak, situated in village Mashobra, Pargana Showhawali, Tehsil and District Shimla along with plants and trees standing thereon, comprised in Khewat Khatauni No. 83 min/ 102, Khasra Nos. 194/1 (0-11 biswas), 195/1 (11 bighas 13 biswas), 196 (0-8 biswas), 197 (0-3 biswas), 198 (0-2 biswas), 199/1 (7 bighas 19 biswas), 200 (0-18 biswas), 201 (1 bigha 3 biswas), 202 (0-15 biswas), 203 (0-4 biswas), 204 (0-4 biswas) and 205/1 (26 bighas 14 biswas) with one bungalow, out-houses and buildings standing therein, measuring a total of 50 bighas and 14 biswas (38, 152.6 sq. mts. equivalent to 45,630 sq. yds) as bonded in red in the plan annexed to the plaint and in the Tatima issued by the Patwari, by means of a sufficient instrument in favour of plaintiff No. 2, along with actual physical possession of property against payment of the balance sale price; (ii) in case, the defendant fails to do so, the needful be got done by an officer of the court. The defendant be also directed to perform all acts to facilitate and effectuate the transfer of the property in suit by the defendant in favour of plaintiff No. 2 including obtaining extension of period for execution and registration of the sale deed granted by the H.P. Government; (iii) although with it is not necessary, but in case the Court considers proper, appropriate orders regarding delineation or any other matter in relation to the agreement, may also be passed; (iv) such other and further reliefs and in such form as the Court deems proper may also be awarded to the plaintiffs along with costs of the suit." Admitted Facts:
2. The defendant is the owner of the property known as The Peak in village Mashobra, Pargana Showhawali, Tehsil and District Shimla, comprising of land measuring 65 bighas 14 biswas in Khewat/Khatauni No. 83 min/102, and khasra Nos. 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204 and 205 along with plants, trees, a bungalow, out-houses and buildings therein as detailed in the jamabandi for the year 1984-85. He on 28.9.1990 vide an agreement (Ex. PW 2/A) agreed to sell about 45,000 sqr. yds. out of the above said land as delineated in the contour site plan Ex. PW 2/B annexed to the agreement, along with building therein for a total consideration of Rs. 1,10,00,000 that is, at the rate of Rs. 200 per sqr. yds. for the land along with plants and trees therein and Rs. 20,00,000 for the buildings therein. A sum of Rs. 25,00,000 was paid to and received by the defendant by way of bank drafts at the time of agreement as earnest money. Vide this agreement, it was, inter alia, agreed between the parties as under:— (a) a joint survey would be undertaken by the parties within 60 days from the date of the agreement and the area agreed to be sold shall be demarcated at the site and a plan shall be prepared on the basis of such demarcation; (b) the actual area agreed to be sold shall be determined after the demarcation referred to at (a) above subject to the condition that the plaintiff shall take approx. 45,000 sq. yds. of land, leaving the remaining land towards the Mashobra Bazar falling on the South- East of the property to the defendant; (c) the survey plan referred to as at (a) above duly signed by the parties shall be considered as revised plan for the purpose of agreement and execution of sale deed; and (d) the actual sale consideration would be determined and paid on the basis of actual measurement of the land agreed to be sold.
3. The original agreement dated 28.9.1990 (Ex.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
